Home Affairs’ changes to Immigration Bill will impede growth and employment

The proposed legislation would be impractical, would violate the Constitution.

The Immigration amendment Bill will be presented for a second reading in the National Assembly on 22 March 2011, and members may vote to finalise this Bill.

While some of the changes in the new immigration bill (B32-2010), introduced to Parliament on 1 October, 2010, have been expected for some time, the Forum of Immigration Practitioners South Africa (FIPSA) believes that the proposed legislation would be impractical, would violate the Constitution and could destroy jobs at a time when the policy of the Government is focused on saving and creating jobs.

The bill is Home Affairs’ first attempt to deal with ongoing problems within its permitting department, which handles all work, study, business, retirement and related permits. However, it does not take into account that Home Affairs has huge capacity problems and backlogs, and addresses only the basic functions of the permitting system.

These changes will add significantly to the current operational and processing problems which the Department is experiencing as announced by the Minister and the DG, which are common knowledge.

The department currently has a backlog of nine months for processing normal work permit applications, which by law should be handled within 30 days. There have been changes in recent months as the DHA has created and filled new staff posts. The current undertaking by the DHA is that the backlog will be cleared by the end of January 2011.

Right of representation

One of the changes in the new bill is that Section 46, which defines which professions may legally assist applicants – namely, registered practitioners, advocates and attorneys – will be repealed. This would have serious consequences, should the draft bill be passed, as the applicant’s right to representation in immigration matters – a right entrenched in the Constitution – would be removed.

The related advisory professions would also lose their current recognition and right to do business in this field, and jobs would be lost in the economy. The repealing of Section 46 would result in an unregulated industry in which anyone would be able to advise applicants, causing further problems in a sector which we believe needs increased regulation.

Personal applications

The bill also requires that all permit applications should be submitted in person at a Home Affairs office or an embassy overseas, although couriered applications have been acceptable in the past. We do not believe that this is an insurmountable problem where verification of documents and identities may be required, but this does not require that Practitioners be excluded where they hold legal power of attorney to represent the applicant/s.

Business visas

In addition, the draft Bill seeks to prescribe the investment categories for which business visas may be issued. Home Affairs from time to time will have to publish regulations defining sectors of the economy which are to be targeted for investment. This will require proper and thorough research to be done with regular updates to these lists. This goes against International Best Practice which allows individuals above a certain investment threshold to invest in a sector of their own choice, thereby encouraging Entrepreneurs with their own capital to invest and create jobs.

Critical skills

Another proposal is to replace the existing Exceptional Skills permit with a new permit called the Critical Skills permit. Meeting the requirements for this new visa may present difficulties, as a critical skill – unlike an exceptional skill – is not regarded, in normal terminology, as a stand-alone skill or qualification. It is a set of skills identified by human resource and labour analysts as being over and above the normal qualifications, which provides the individual with the ability to analyze, lead teams, and work with new technologies.

This proposed amendment is perhaps intended to address the country’s skills shortages, which should be met through a more efficient quota system. The current quota list, which should have been published in May, 2010, is not yet available.

Change of Status and conditions of permit:

Visitor and medical permit holders will not be allowed to change their status while in South Africa.

The process to change the status and conditions of a permit – for example, to extend it, or to change from a study permit to a work permit – is currently well-established and may be undertaken while the person is in SA, provided they meet certain criteria. The draft bill proposes that this process should be escalated to an application under exceptional circumstances and will be subject to as yet undefined criteria. Family members on visitor permits(spouses and children) would be prejudiced by this provision.

Corporate work permits

Intra-company and corporate work permits would be subject to a prescribed list of requirements that have not yet been made public. The department would require new and different resources to implement this proposal, as a dynamic system with research capacity and properly researched information would be required to make timeous and informed decisions.

Impact on the Economy

Overall, we are concerned with the impact of these changes on economy at a time when Government is trying to preserve and create jobs and encourage skilled individuals and investor to come into SA and contribute to this process. In terms of skills required by the economy, the HRDS-SA Strategy unveiled by the Dept of Higher Education (attached) refers to a huge amount of work which has to be undertaken over the next 3-5 years to have a proper assessment system developed so that skills shortages are quantified and then shortages addresses scientifically.

In terms of investment we compete internationally against al other countries and part of the assessment process of our competitive standing in the area of legislation and bureaucracy. We need to continually look at ways to improve these and other areas as we are currently losing our position of 36th in world rankings on the World Bank competitiveness report.

Consultation

It is common cause that there has been no consultation on these amendments and the tasks of consultation now falls to Parliament, where it should in fact be undertaken by the DHA.

Constitutionality

It is well established in law that the freedom to exercise the right to economic activity is entrenched in the Constitution, as is the right to represent an applicant where the relevant power of attorney, currently prescribed in the regulations, is utilized. The courts have recently clarified this in the case of Regiserve vs The Minister of Home Affairs . This case also refers to the DHA’s preference for a regulated industry body as opposed to less or no regulation, which will be the case if Section 46 is repealed.

The are currently some Labour Bills under consideration it can be noted that other legislation is being considered by the DOL which will duplicate the functions allocated to Home Affairs by the Constitution. These pieces of Legislation need to be synchronized and harmonized to avoid conflicts and duplications.

The draft Bill, on one hand, assumes too much in respect of the proposed changes, while on the other it does not go far enough in that no provision has been made for unhappy applicants to be heard by an outside, objective party, such as a court or judicially-trained ombudsman. Having recourse to an outside party or structure would restore confidence in South Africa in investors and skilled individuals, who would feel they were coming to a country which welcomed them and therefore took the trouble to put an efficient permitting department in place.